Wednesday, April 23, 2014

McCavitt testifies in own trial

From page A1 | February 07, 2014 | 7 Comments


JOSHUA McCAVITT enters the courtroom Tuesday. Democrat photo by Pat Dollins

The last two days of testimony of a trial, concerning a man who is charged with killing a woman in a head-on collision while drunk, focused on science before the final witness — the defendant — took the stand.

Christopher Port continued his testimony Tuesday from the previous Thursday. He testified that defendant Joshua McCavitt’s 1999 Chevy Silverado’s low and high beams were on, and victim Denise Caldwell’s 2012 Suburu Legacy’s low beams were on at the time of impact.

Port also accessed records from Hawaii, confirming that McCavitt had a 2006 DUI arrest in the state. Records showed he attended a class for DUI offenders. A stipulation — an agreement between defense attorney Arturo Reyes and deputy district attorney Michael Pizzuti — was read to the jury that McCavitt had indeed attended the class, used a work book and watched a video.

Joey Padilla recounted his interactions with McCavitt the night of the collision. He had been at the Rusty Nail Saloon when McCavitt, whom Padilla had met a few times at the Stadium Club, a Placerville bar, came in. They were there for 30 or 45 minutes and then went to the Pine Lodge, where they had a few beers before returning to the Rusty Nail. McCavitt headed back toward Placerville while Padilla stayed. He didn’t remember McCavitt having a drink upon returning to the Rusty Nail.

Next to the stand was Robert Snook, the owner of a traffic accident reconstruction firm and former CHP officer. With measurements, data collected from a “black box”-like computer that governed the airbag of the Silverado, a friction mark from a tire, damage to the cars and many other factors, using math and computer programs, Snook was able to recreate the collision.

The change in velocity, of the truck was 24 mph at impact, he noted. “Speed change is what kills … causes havoc, damage and injury,” he said. That change was at the threshold of fatal injury, which, due to the truck being raised, was indeed fatal. The body can’t handle stopping from speed in milliseconds, he said, so victims will often suffer damaged brainstems, torn aortas and livers torn in half from such an impact.

The impact itself saw McCavitt’s truck failing to navigate a right-hand bend, with a posted advisory of 20 mph, going 57 mph. He drifted into the oncoming lane, hitting Caldwell’s car, which was towards the right edge of her lane. She was going 4 mph, his impact speed had slowed to 50. The cars tangled together, the truck going to its left, over the edge of road. The tangled mess slid for 69 feet — backward for the Suburu, forward for the Chevy — taking out one of the arrow signs indicating the curve. The cars flipped onto their sides and came to a rest on their roofs. The Suburu’s wheels where just over the double yellow lines; half of McCavitt’s truck was over the side of the road, having almost completely traversed from his original lane to the other side of the roadway.

The head-on collision was slightly offset, striking the “A” post — the driver-side post holding up the windshield — with the front passenger wheel. The grill of the truck was missing; blood and tissue were found on the hood and blood was on the license plate. The front part of the Suburu’s roof was caved in.

“Was that survivable?” Pizzuti asked Snook. ”No,” Snook replied.

Reyes confirmed with Snook that Snook was not on-scene when the collision happened, but took his measurements a few months afterward.

The cause of Caldwell’s death was cerebral contusion and skull fracture due to blunt-force trauma, said Dr. Michael Berry, who performed the autopsy. Dr. Craig Theyer treated McCavitt for a fractured right clavicle, a contusion to his hand and sternum and for acute alcohol intoxication.

According to a study done in the Netherlands, said Department of Justice criminologist Tim Appel, alcohol and marijuana taken together will compound the effects, with the study finding those who drove with a BAC of .04 driving as if they had a BAC of .09. However, the THC in marijuana is 80 percent gone within 30 minutes. The effects last about two hours. THC was detected in McCavitt’s blood sample.

The first witness of the final day of testimony was Nadina Giorgi, also a criminologist at the DOJ. She said that McCavitt’s blood tested positive for Xanax, which, like marijuana, compounds the effects of alcohol.

DA investigator Dave Stevenson, a former undercover narcotics officer, assisted Port in examining the cars and found a pack of Camel cigarettes with a bud of marijuana in them. Both were produced in court. A card for a shop selling medical marijuana was also found. The pipe found at the scene of the collision was unsealed from its evidence bag; Stevenson said there was a strong odor of marijuana. “Burnt marijuana has been smoked through this pipe at some point,” he said.

Fingerprints, he told Reyes, would be nearly impossible to get from the pipe. As such, he cannot positively identify the pipe as being McCavitt’s.

A video that was supposedly shown to McCavitt during his DUI class was then played for the jury before the prosecution rested its case.

The single witness for the defense was called: Joshua McCavitt.

He confirmed his DUI in Hawaii and that he went to class for two days, but he didn’t remember the video. He did worksheets.

His normal day was to “take a couple of rips” of marijuana before going to work. He would be picked up by whoever he was working with, doing remodels, decks and sheds. He did not normally mix alcohol with marijuana and only had marijuana at home in the morning and just before going to bed, he said.

The day of the accident, he smoked just after waking up and rescheduled work for the next day. He had biscuits and gravy for breakfast. He then worked in his yard until noon. He took a shower, ate the leftovers of breakfast and headed in to town to shop at Walmart. He bought minutes for his phone and a movie. He went into Placerville and, seeing a friend’s car at the Liar’s Bench, he entered the bar. His friend was having a birthday party and bought McCavitt a few beers, two or three. He was there from 4 p.m. to 7 p.m. He then went to McDonald’s, had “a couple cheeseburgers and a couple McChickens,” and headed toward the Dollar Tree. He went to the small market nearby, where he got cheap cigarettes, Marlboro Lights. He didn’t smoke Camels at the time, he told Reyes.

When he came outside, he met up with Padilla, contrary to Padilla’s testimony. Padilla was already drunk. McCavitt went out of his way to take Padilla to the Rusty Nail. He confirmed what was on a video played for the jury — he was there for between 30 and 45 minutes and had a single Pabst Blue Ribbon beer. He never had Xanax that night, he said, nor had he ever taken the drug. He left because of the work he was scheduled to do the next morning and felt OK to drive, he said. He smoked a cigarette outside the bar and left.

He was aware that, due to the modifications to his truck, it would roll if a corner was taken at speed. This was his “Sunday driver” car as his normal car was in the shop. As he started into the turn where the collision happened, he said he saw a flash as the airbag deployed and woke up upside-down. He didn’t remember seeing Caldwell’s car coming at him. He said he was going 40 or 45 mph around the blind curve, but added he had “no time to slow down.”

He was in shock and didn’t feel any pain. He was concerned about the other driver but no one would answer his questions about the other driver’s condition.

He wasn’t trying to conceal information, he said, and noted he only had four beers across the entire night.

Pizzuti asked McCavitt if he had lied several times to Reyes in the testimony he had just given. “I did not lie, I didn’t know where I was,” he said of his confusion at the scene. He told the EMT that he had two beers. He also said, “I’m not going to lie, I have (mixed marijuana and beer) in the past.” He smoked marijuana for back pain as a result of 15 years of carpentry. He said he didn’t know how his BAC was at .12.

When asked about speeding and his three prior infractions, and telling officers “I never speed,” he told Pizzuti, “I was being attacked at the time. It was a defense mechanism.” Pizzuti replied, “A lie?” McCavitt said, “If you want to call it that.”

McCavitt also said, “I wasn’t in her lane.” He added she was “half in hers, half in mine,” and that he never strayed from his lane.

When his house was raided as a marijuana grow site, photos were taken of Camel cigarette packs, Pizzuti said. McCavitt explained they were a friend’s.

The prosecutor asked about calls made to a bondsman from jail where McCavitt said she was in his lane and didn’t have her headlights on, and could have been dead already when the collision happened. The defendant noted the last part was an argument his previous lawyer had put forward. Reyes confirmed that the lawyer was not him.

The defense rested. The trial continued Thursday with closing statements. The jury was deliberating Thursday as of press time.


Discussion | 7 comments

  • Danny B.February 07, 2014 - 12:39 pm

    This poor excuse for human being can't even keep his stories straight.. Did not see her coming then changes it to she was all the way in my lane and her lights were off. Get a rope !!

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  • idon'tbuyitFebruary 07, 2014 - 4:38 pm

    He frequents the liars bench, rusty nail, stadium club, and marijuana dispensary, but now way would he EVER let a camel cigarette pass his lips.

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  • valerieFebruary 07, 2014 - 4:46 pm

    He is accusing the victim of already being dead before he hit her. I have never heard of anything so low. He needs to humble himself and repent.

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  • ChristianFebruary 07, 2014 - 4:49 pm

    When I hear the term "Sunday Driver" I think of a distinguished couple in a classic car taking in the view, not the truck I drive to the dollar tree and mcdonalds because it's the only working vehicle I own.

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  • 1036-FrankFebruary 07, 2014 - 5:35 pm

    Poster child for why Pot should remain illegal because people like him think they can function after smoking it and adding pills and alcohol and getting in a truck and driving. Blaming the victim he killed for being in his lane? Give him life, no parole for murder and I hope he rots in there in a 10 foot cage.

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  • sisterninFebruary 08, 2014 - 11:39 am

    It's difficult to see a man's life hang in the balance. It's sad to see a total lack of remorse. Thank you to the jurors. As family of the victim of this tragedy, we are so grateful for the professionalism and attention to detail, Grant funding and preparedness of the District Attorney's office Prosecutors, staff and investigators. As well the Sheriff and CHP were heroes to us and we are reminded of the importance of what all of these men and women do every day. They don't get the thanks they deserve.

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  • Jesse KingMarch 01, 2014 - 1:37 am

    I know Josh McCavitt, to say that he doesn't have any remorse for what happened is untrue. He may be guilty of being a negligent driver, but I am certain he had no willing or malicious intent in the death of this woman. It was a very tragic accident, and I don't think he deserves 15 to life in prison. What if he wasn't under the influence? Would he still be responsible for her death? It's a tragic event any way you look at it...

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